Wikileaks & protecting the government from embarrassment

Fri Dec 10 13:51:38 PST 2010

The statement that in New York Times v. Sullivan that the "judgment of
history" was against the constitutionality of the Sedition Act is a
considerable overstatement, at least based on the framing-era evidence.
As it happens, the theory that Federalists advanced in support of the
constitutionality of the Sedition Act was that criticism of government
policy amounted to obstruction of government policy.   For a helpful
discussion, see James P. Martin, When Repression Is Democratic and
Constitutional: The Federalist Theory of Representation and the Sedition
Act of 1798, 66 U. Chi. L. Rev. 117 (1999).  If we indulge Mr. Roland's
view that we are confined to framing-era evidence of the original
understanding of the Constitution, then it is not much of a stretch to
sustain the Espionage Act as applied to Mr. Assange's conduct on a
similar theory.  If, on the other hand, we should worry about
contemporary doctrine (including Sullivan's assessment of the Sedition
Act), we cannot confine ourselves to Sullivan.  We must instead engage
in the kind of balancing demanded by Bartnicki, and consider the
governmental interests that are compromised be leaks under Snepp.  On
that score, surely the government's interest in deterring leaks that
could endanger the lives of confidential diplomatic sources is one of
the highest order.  

Larry Rosenthal

Chapman University School of Law

From: Daniel Hoffman [mailto:guayiya at bellsouth.net] 
Sent: Friday, December 10, 2010 1:11 PM
To: jon.roland at constitution.org; Rosenthal, Lawrence
Cc: conlawprof at lists.ucla.edu
Subject: RE: Wikileaks & protecting the government from embarrassment

The Sedition Law did not criminalize "obstructing government policy."
If that were a crime, opposition parties would be automatically
criminal.

No one was ever indicted under the Sedition Law for leaking.  And that
law was unconstitutional anyway, see NYT v. Sullivan.  
We have no official secrets act, and it would not be constitutional.
Daniel Hoffman

--- On Fri, 12/10/10, Rosenthal, Lawrence <rosentha at chapman.edu> wrote:

	From: Rosenthal, Lawrence <rosentha at chapman.edu>
	Subject: RE: Wikileaks & protecting the government from
embarrassment
	To: jon.roland at constitution.org
	Cc: conlawprof at lists.ucla.edu
	Date: Friday, December 10, 2010, 12:53 PM

	I am happy for Mr. Roland that he finds it so easy to assess the
relevant historical evidence.  I find the process much more difficult.
The Sedition Act passed both houses, was signed by the President, and
was upheld by all the judges to consider its constitutionality.  True,
there were opponents, most notably Madison, but even he, in the
"Virginia Report" to which Mr. Roland alludes, admitted his inability to
identify "the proper boundary between the liberty and licentiousness of
the press," and staked his opposition on the claim that representative
governments "require a greater freedom of animadversion than might be
tolerated by the genius of such a government as that of Great Britain."
To my eye, that's not exactly a ringing endorsement of the dissemination
of purloined government information that, if disclosed, could endanger
the lives of confidential diplomatic sources.

	As it happens, Justice Story never took a position on the
constitutionality of the Sedition Act.  The sentence that Mr. Roland
cites is rather distressingly taken out of context.  For those
interested in his actual view on the First Amendment and the Sedition
Act, it is expressed in volume 3 of his treatise and not in the passage
to which Mr. Roland links. 

	In a forthcoming article, I review at some length the deeply
conflicting and confusing evidence of the original meaning of the First
Amendment. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1481478
My conclusion (expressed in a somewhat more scholarly fashion in the
article):  It's hard to tell, but it probably involves some kind of
balancing.  For that reason, I'm not so convinced that a court could not
uphold a conviction of Mr. Assange without effectively "amending the
Constitution without the Article V procedures." 

	Larry Rosenthal
	Chapman University School of Law

	________________________________

	From: Jon Roland [mailto:MailScanner has detected a possible
fraud attempt from "us.mc1803.mail.yahoo.com" claiming to be
jon.roland at constitution.org
<http://us.mc1803.mail.yahoo.com/mc/compose?to=jon.roland@constitution.o
rg> ]
	Sent: Fri 12/10/2010 9:04 AM
	To: Rosenthal, Lawrence
	Cc: Pohlman, Harold; conlawprof at lists.ucla.edu
<http://us.mc1803.mail.yahoo.com/mc/compose?to=conlawprof@lists.ucla.edu
> 
	Subject: Re: Wikileaks & protecting the government from
embarrassment

	Framing Era practice is not dispositive of constitutional
meaning. The Constitution aspired to overcome and surpass contemporary
practice. The Alien and Sedition Acts were rejected as unconstitutional
by leading Founders, and their arguments
<http://constitution.org/rf/vr.htm>  are persuasive.

	As Joseph Story <http://constitution.org/js/js_327.htm>  pointed
out:

	    It is said, that not a single constitutional question,
except that of the Alien and Sedition laws, has ever been settled. 

	On 12/10/2010 10:22 AM, Rosenthal, Lawrence wrote: 

	    the Sedition Act is surely one precedent that the original
meaning of congressional powers as well as the First Amendment supports
punishing those who are thought to engage in expression that obstructs
government policy.

	-- Jon

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